EXHIBIT 10.20
SEVERANCE AGREEMENT
DEFINITIONS. All the words used in this Severance Agreement have their plain
meaning in ordinary English. Specific terms used in this Severance Agreement
have the following meanings:
1. Words such as I and ME include both me and anyone who has or obtains
any legal rights or claims through me. My name is D. Xxxxxx Xxxx.
2. "COMPANY " means Active IQ Technologies, Inc., and its affiliated
entities, and each of them, and past or present officials, managers,
agents, officers, directors, employees, shareholders, committees,
insurers, indemnitors, successors or assigns of any of the foregoing
entities or persons.
COMPANY'S PROMISES. In exchange for My Promises, as set forth below, Company has
promised to extend the following consideration to me following the expiration of
my right to rescind, but only if I have not exercised my right to revoke or
rescind as provided in this Severance Agreement:
1. The Company shall continue to pay my annual base salary of $200,000
from January 1, 2003 through May 31, 2003, in accordance with the
Company's regular payroll practices. Therefore, if I sign this
Severance Agreement and do not revoke or rescind, the first installment
of the severance pay will be paid on the first regularly scheduled
Company payday after the 15-day rescission period has expired, and will
include payment for the period from January 1, 2003 to the end of the
pay period following the expiration of the 15-day rescission period.
The remaining installments will be paid on the succeeding regularly
scheduled Company paydays or as otherwise deemed appropriate by
Company. These payments shall be subject to applicable federal and
state income tax, FICA withholding and any other routine withholdings
made by Company.
2. The Company shall amend the option agreement between me and the Company
dated July 1, 2000 in order to provide that I shall have until December
31, 2007 in order to exercise the options granted thereunder. All other
outstanding options that have been granted to me by the Company shall
expire in accordance with their respective terms.
3. Until December 31, 2003, the Company shall maintain, at its own
expense, health and other insurance benefits that were being provided
to me as of December 31, 2002.
4. In exchange for my promises and other agreements made in this Severance
Agreement, the Company hereby forever releases and discharges me from
any and all liability related to my employment with the Company, and
the Company shall defend and promptly indemnify me, my heirs,
successors and assigns, and save and hold us harmless from, against,
for, and in respect of, and pay any and all damages, losses,
obligations, liabilities, claims, encumbrances, deficiencies, costs,
and expenses, including without limitation, reasonable attorneys' fees
and other costs and expenses incident to any suit, action,
investigation, claim, or proceeding, suffered, sustained, incurred, or
required to be paid by us by reason of my employment with the Company
or the Company's activities while I was employed.
MY CLAIMS. The claims I am releasing include all of my rights to any relief of
any kind from Company, including, but not limited to:
1. All claims I have now, whether or not I now know about the claims;
2. All claims for attorney's fees or other legal costs;
3. All claims for alleged discrimination against me and any other rights
and claims under Title VII, the Age Discrimination in Employment Act
("ADEA"), the Minnesota Human Rights Act ("MHRA"), the Americans with
Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), or
any other federal, state, or local law;
4. All claims arising out of my employment or my separation from
employment with Company, including, but not limited to, any alleged
breach of contract, wrongful termination, defamation, invasion of
privacy or intentional infliction of emotional distress;
5. All claims for any other alleged unlawful employment practices arising
out of or relating to my employment or my separation from employment;
and
6. All claims for any other form of pay, for example holiday pay, vacation
pay, severance pay, bonus pay and sick pay.
MY PROMISES. In exchange for receiving the payments and other consideration set
forth in this Severance Agreement, I promise to give up all my claims against
Company. I fully and finally release, give up, and otherwise relinquish all of
my rights and claims against Company, including, for example, rights and claims
under Title VII, the ADEA, MHRA, ADA and FMLA. I will not bring any lawsuits or
make any other demands against Company, except if necessary to enforce the
provisions of this Severance Agreement. The money and benefits I will receive as
set forth in this Severance Agreement are full and fair payment for the release
of all my rights and claims. Company does not owe me anything in addition to
what I will receive under this Severance Agreement. The consideration extended
by Company in this Severance Agreement in return for my release of rights and
claims is more than anything of value to which I am already entitled.
I agree that my obligation to comply with the restrictions contained in
the Employment Agreement between me and Company dated May 1, 2001 (as amended on
January 1, 2002), specifically paragraphs 7, 8, 9, 12 and 14 (the "Restrictive
Covenants"), shall survive the termination of my employment with Company;
provided, however, that in the event the Company materially breaches any of its
promises or agreements contained in this Severance Agreement, I shall no longer
be bound by or subject to the Restrictive Covenants. I acknowledge and agree
that, when this Severance Agreement becomes effective, the remaining provisions
of my employment agreement shall terminate and have no further force or effect.
I agree to cooperate with Company now and in the future concerning
aspects of Company's business, including, but not limited to, the obligation to
answer any reasonable questions presented by Company to me and the obligation to
assist Company in the defense of any claim against Company. The Company agrees
to reimburse me for any reasonable expenses that I incur in connection with
assisting the Company in defending any such claim. I further agree that during
the period in which I am receiving payments from the Company described above
under "Company Promises," I will make myself available for up to ten (10) hours
per week to provide consulting and other services to the Company, at no
additional charge, as reasonably requested from time to time by the Company.
I agree that I have returned all of Company's confidential and
proprietary information, documents, computer disks, computer files, and other
property in my possession or under my control.
I agree that I will keep the terms of this Severance Agreement
confidential and that I will not disclose any of its terms to any third party,
other than to my spouse, accountant and legal counsel. In turn, my spouse,
accountant and legal counsel shall be advised regarding the confidentiality
provisions of this Severance Agreement and must agree to maintain the
confidentiality of this Severance Agreement as a condition of disclosure.
I understand that my representations are material, and Company is relying on my
representations to enter into this Severance Agreement with me. The covenants
and undertakings of this section shall survive termination of this Severance
Agreement.
ADDITIONAL AGREEMENTS AND UNDERSTANDINGS.
1. Company does not admit that it is responsible or legally obligated to
me, and in fact Company denies that it is responsible or legally
obligated to me for any amount even though it has paid me to release my
claims.
2. Both Company and I agree not to disparage the other now or in the
future.
3. Company and I both admit that this Severance Agreement results from an
agreement to separate on mutually agreeable terms, and that I was not
terminated by the Company nor did I first agree to quit employment.
Company desires to offer severance benefits to me and I understand that
my eligibility to receive such benefits depends upon my signing this
agreement.
4. This Severance Agreement constitutes the entire understanding between
me and Company and supersedes all prior discussions, representations,
and negotiations with respect to the matters herein relating to my
employment and the termination of my employment, except that the
Restrictive Covenants survive the termination of my employment.
5. Company and I understand that I have resigned as Chief Executive
Officer of the Company as of December 31, 2002. I have also resigned
all other offices and positions that I have held with subsidiaries of
the Company as of December 31, 2002. Company and I understand and agree
that Company has paid me all money due up to and including my
employment termination date of December 31, 2002, which amount included
all benefits and other pay due and owing to me from Company.
Notwithstanding the foregoing, Company and I understand that I will
continue to serve as a director of the Company.
6. In accordance with the terms of the Employee Stock Option Agreement
between me and the Company dated January 7, 2002 (the "Option
Agreement"), on January 14, 2002, I acquired 500,000 shares (the
"Shares") of Common Stock of the Company by delivering to the Company a
Promissory Note in the principal amount of $2,000,000 (the "Note"), all
of which remains outstanding as of the date hereof. I understand that
none of the Shares have vested in accordance with the terms of the
Restricted Stock Purchase Agreement dated January 14, 2002 between me
and the Company (the "Purchase Agreement") and the Option Agreement. I
further understand that Company is hereby exercising its right,
pursuant to Section 1 of the Purchase Agreement, to re-purchase the
Shares in exchange for canceling the entire indebtedness that I owe
under the Note. Accordingly, upon the date that this Severance
Agreement becomes effective, the
Company and I understand that I will no longer have any obligations
under the Note and I will have no further rights with respect to the
Shares.
7. Company and I understand that I shall be entitled to recover reasonable
legal fees and expenses incurred by me in the event I prevail in an
action commenced by me against the Company to enforce the terms of this
Severance Agreement.
RIGHTS TO CONSIDER AND REVOKE OR RESCIND.
1. I understand that I am advised by Company to consult an attorney prior
to signing this Severance Agreement and General Release.
2. I further understand that I have forty-five (45) days to consider my
waiver of rights and claims of age discrimination under the ADEA,
beginning January 6, 2003, the date on which I received this Severance
Agreement and General Release. If I sign this Severance Agreement and
General Release, I understand that I will then be entitled to revoke my
release of any rights and claims of age discrimination under the ADEA
within seven (7) days of executing it, and the release of my ADEA
rights and claims shall not become effective or enforceable until the
seven-day period has expired.
3. I further understand that I have the right to rescind this release of
discrimination rights and claims under the MHRA within fifteen (15)
calendar days of the date upon which I sign it. I understand that, if I
desire to rescind my release of discrimination rights and claims under
the MHRA, I must put my rescission request in writing and deliver it to
Company by hand or by mail within 15 calendar days of the date of
execution of this Severance Agreement by me. If I deliver my rescission
request by mail, it must be:
a. postmarked within 15 calendar days of the day on which I sign
this Severance Agreement;
b. addressed to President, Active IQ Technologies, Inc., 0000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000; and
c. sent by certified mail, return receipt requested.
I understand that if I revoke or rescind this Severance Agreement, all
of Company's obligations under this Severance Agreement will immediately cease,
and Company will not pay me any of the money or benefits in this Severance
Agreement.
I have read this Severance Agreement carefully and understand all of
its terms. In agreeing to sign this Severance Agreement, I have not relied on
any statements or explanations made by Company, its agents or its attorneys.
Dated: January 6, 2003 /s/ D. Xxxxxx Xxxx
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D. Xxxxxx Xxxx
ACTIVE IQ TECHNOLOGIES, INC.
Dated: January 6, 2003 By:/s/ Xxxxxx X. Xxxxxxxxxxxx
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Its: Director, Compensation Committee
